The opinion of the Court was drawn up by

Upon the question referred to us by the report of the facts which were proved on the trial of this case, we find it difficult to apply those principles and rules of decision which in ordinary cases would furnish a very clear guide to our judgments.

The plaintiffs, together with one Wilde, who died before the commencement of the suit, were owners of one quarter of the vessel ; the defendant, with other persons, owned the other three quarters. The plaintiffs and Wilde, by a parol agreement, which however is to have the legal force and effect of a written instrument of charter-party,1 had taken the whole of the vessel into their possession and employment, and engaged to victual and man her, and in lieu of stipulated hire or charter were to pay for the use of the vessel one halt of her earnings while in their employment. By this agree ment one half of the earnings of three fourths of the vessel would belong to the defendant and others as owners of the three fourths, and the other half would belong to the plaintiffs and Wilde as owners of one fourth and hirers of the residue, they to be at all the expense of sailing and maintaining the vessel out of their proportion. The effect of this agreement would be, to entitle the plaintiffs and Wilde to five eighths of the earnings of the vessel and the other owners to three eighths. This would have been the proportion of any earnings of the vessel, had she successfully prosecuted and terminated the voyage on which she was captured and lost; for indemnity having been recovered and paid over to the defendant, an owner of one fourth part, who in this respect acted as agent for the whole, he is bound to distribute from the funds so received, to the several parties interested, in the like proportion, so far as these funds are applicable to the interests, *458as before stated, which each party had in the subject matter, to wit, the vessel and the voyage.

And it is understood, that in regard to the value of the vessel, as compensated, and the allowance for freight on her return to this country, an adjustment has taken place, which is satisfactory to the parties, being founded on the foregoing principles.

But besides making compensation for the vessel, the cargo and the freight, a large sum, with interest also allowed, has been paid by the foreign power whose servants made the capture, and received by the defendant, in his capacity of agent for all the parties interested in the vessel and voyage, viz. 1924 dollars and 68 cents. And a controversy has arisen in regard to the disposition of this sum, the plaintiffs claiming for themselves and Wilde the whole as fitters, hirers, or charterers of the vessel, and the defendant claiming to hold the whole for himself and others the owners of the vessel as such, having tendered to the plaintiffs one quarter part of the amount, to which alone he supposes they are entitled as own ers of one fourth part of the vessel.

If this allowance had been made for demurrage, in the common mercantile understanding of that term, and the contract between the parties had been in the usual form of charter-parties of affreightment, and the vessel, after having been detained under capture, had been released and permitted to return home, there would be no difficulty in setding the controversy. In such case, had the charter been for a stipulated price per ton per month, as the hirers would be accountable for the hire until the termination of the voyage, the indemnity for detention and delay would belong to them. But if the vessel had been hired for the voyage without stipulation fo: time, the same indemnity, or such proportion of it as wou.d be justly referrible to the damage by detention of the vessel only, would belong to the owners of the vessel alone. And in the case before us, apart from some other considerations which will be mentioned, the hirers of the vessel and the owners would seem to be jointly interested in a fund so raised ; the hirers, because the detention was to their damage by the increased expense of maintaining the vessel, the owners, *459because they would lose the employment and earnings of their vessel during the detention. This would be an equitable and strictly legal distribution as to its principle, and the proportion must be regulated by the degree of damage which the parties would respectively suffer

But the difficulty in the case arises from the nature and apparently extreme liberality of the indemnity made by the power under whose flag the vessel was captured.1 Not only full compensation has been made for the value of the vessel, even as estimated by the owners themselves, but interest on that value has been paid from the day of the capture to March 1825, when the amount was paid over to our government. It would seem clear, therefore, that under this allowance the owners had received full indemnity for the loss of their vessel, and that she may be considered equitably as sold by them at their own price on the day she was captured, and the value then put on interest for them. They suffered nothing therefore from detention, and would seem to have no interest in the sum allowed for that cause. And in regard to their interest in the earnings of the vessel, they would seem to have been fully compensated. Her outward cargo was safely delivered at St. Jago de Cuba, and freight was earned thereon, of which they have undoubtedly received their proportion ; and the freight from thence to Philadelphia on her return, has been paid for and distributed, with the interest thereon from the time of the capture. It would seem to follow that the owners of the vessel, as such, were not entitled to any portion of this fund ; but there are circumstances in this case which afford room for a different view of the subject.

All the parties seem to have considered themselves as jointly interested in whatever sums might be recovered on account of the capture of the vessel. They sent out a vesse at their joint expense to prosecute their claim. They agreed, as in the memorandum in the case, to receive their several nroportions of what might be recovered on account of these claims, in the proportion as they owned the vessel. In their memorial to congress it appears that they had earnestly urged the Venezuelian government to allow them demurrage, which they stated at 3000 dollars, and this claim appears to have been made generally, and not on account of either of the parties specially. It may be said too, on the part of the owners, that their vessel was prevented by the capture and detention from earning any thing for them for a number of months, and that although the vessel was paid for at a generous price, yet she was not parted with voluntarily by them, and that the plaintiffs had their full proportion of the price of the vessel as owners.

Taking all things into consideration, we are of opinion that this sum allowed in the name of demurrage, ought to be considered as in lieu of the earnings of the vessel which were lost by the detention ; for though there was an allowance upon the same liberal scale for freight home, yet this would have been earned in all probability several months sooner, but for the capture, and therefore there was a loss on this account to the owners.

And this seems to have been the plaintiffs’ view of their own rights, for when they agreed to submit the matter to reference, they claimed five eighths only, being the same proportion as they had to claim in the earnings of the vessel. We have therefore come to the conclusion, that the plaintiffs are entitled to five eighths of the sum retained by the defendant. Therefore the nonsuit must be taken off, a default entered, and judgment accordingly, deducting the sum tendered, which has been received.